State v. Upkins, 2016–1742

• Court: United States State Supreme Court of Ohio
• Citation: 2018 Ohio 1812,110 N.E.3d 1249 (Mem),154 Ohio St.3d 30
• Docket Number: No. 2016–1742,2016–1742
• Parties: The STATE of Ohio, Appellee, v. UPKINS, Appellant.
• Decision Date: 10 May 2018

154 Ohio St.3d 30
110 N.E.3d 1249 (Mem)
2018 Ohio 1812

The STATE of Ohio, Appellee,
v.
UPKINS, Appellant.

No. 2016–1742

Supreme Court of Ohio.

Submitted December 5, 2017
Decided May 10, 2018.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Peter T. Reed, Deputy Solicitor; and Timothy S. Sell, Shelby County Prosecuting Attorney, and Melissa L. Wood, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.

{¶ 1} This cause is dismissed as having been improvidently accepted.

O'Connor, C.J., and O'Donnell, Kennedy, Rice, and DeWine, JJ., concur.

Fischer, J., dissents, with an opinion joined by French, J.

Cynthia Westcott Rice, J., of the Eleventh District Court of Appeals, sitting for O'Neill, J.

154 Ohio St.3d 31

{¶ 2} I disagree with the decision to dismiss this case as improvidently accepted. There are a number of problems regarding Anders briefs in this state that should be resolved by this court, and this case presents an opportunity to resolve several of those problems.

I. Background

{¶ 3} Appellant, Lamone Upkins, was charged with four counts of fifth-degree-felony drug trafficking, seven counts of fourth-degree-felony drug trafficking, and one count of third-degree-felony drug trafficking. Upkins, assisted by counsel, negotiated a plea agreement in the Shelby County Court of Common Pleas whereby he pleaded guilty to two counts of fifth-degree-felony drug trafficking, two counts of fourth-degree-felony drug trafficking, and one count of third-degree-felony drug trafficking. In exchange for his plea, the state dismissed the remaining counts. The agreement included a joint sentencing recommendation of four years of incarceration.

{¶ 4} The trial court accepted Upkins's guilty plea and sentenced him to an aggregate sentence of four years and ten months of incarceration.

{¶ 5} Upkins appealed, and the same counsel that represented him in his trial-court proceedings represented him before the Third District Court of Appeals. Upkins's counsel subsequently filed a no-merit brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw as counsel. Upkins filed a pro se brief alleging, among other claims, that his plea was not voluntary because he did not understand that the court could reject the sentence that was jointly recommended, that the sentence was based on incorrect information regarding prior convictions, and that his trial counsel was ineffective in multiple ways. Upkins also argued that he should have been appointed new counsel because his present counsel had a conflict of interest.

{¶ 6} The appellate court conducted an independent review of the record and determined

110 N.E.3d 1250

that there was no nonfrivolous claim. The court permitted counsel to withdraw, and it dismissed Upkins's appeal.

{¶ 7} Upkins filed a pro se jurisdictional appeal with this court. The court rephrased Upkins's fourth proposition of law and accepted jurisdiction over that proposition: "When appellate counsel also served as trial counsel and moves to withdraw pursuant to Anders v. California , the court shall permit counsel to

154 Ohio St.3d 32

withdraw and must then appoint new appellate counsel to review the record and raise any nonfrivolous appealable issue." 149 Ohio St.3d 1405, 2017-Ohio-2822, 74 N.E.3d 464.

II. Anders v. California

{¶ 8} In Anders v. California , the United States Supreme Court ruled that a defendant's due-process and equal-protection rights are violated when defense counsel files a no-merit letter with the appellate court and does no more. 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. The court held that counsel is required to file a brief referring the appellate court to anything in the record that might arguably support the appeal. Id. The defendant must be furnished a copy of his counsel's brief and must be given the opportunity to raise his own arguments. Id. The court must then conduct an independent review of the record and determine whether the case is wholly frivolous. Id. Only after these multiple levels of review are complete can an appellate court dismiss an appeal under Anders . Id.

{¶ 9} The Anders procedure is a constitutional floor and not a constitutional ceiling. Smith v. Robbins , 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). In other words, states may impose greater duties on a defendant's attorney but may not allow counsel to fall short of this level of duty.

III. The Anders procedure creates an ethical problem for appellate courts

{¶ 10} Under Anders , the appellate court must complete an independent review of the record and then appoint counsel to argue that appeal if the court finds that a claim of arguable merit exists. This procedure places the court in the role of both advocate and adjudicator. In Ohio, how can a judge who has reviewed a record and identified issues of arguable merit then rule on the actual merits of the claims he or she previously identified without there being an appearance of impropriety, which is barred by the rules of judicial ethics? See Canon 1 of the Ohio Code of Judicial Conduct.

IV. Anders in other states

{¶ 11} Several other states have either decided to not accept Anders briefs or have adopted a modified version of the procedure.

{¶ 12} The Idaho Supreme Court has entirely barred defense counsel from filing Anders briefs, noting that Anders is a constitutional safeguard, not a constitutional mandate. State v. McKenney , 98 Idaho 551, 552–553, 568 P.2d 1213 (1977). The New Hampshire Supreme Court has adopted the "Idaho rule" and has noted that provided appellate counsel has a good-faith basis for bringing an appeal, defense counsel would not run afoul of any ethical duties because wholly frivolous appeals are "extremely rare." State v. Cigic , 138 N.H. 313, 316–317, 639 A.2d 251 (1994). The Georgia Supreme Court has stated that Anders briefs will

154 Ohio St.3d 33

no longer be considered and has specifically noted that there is nothing to suggest that defense counsel should be disciplined or subject to disapproval for filing a "frivolous" merit brief when representing an indigent client. Huguley v. State , 253 Ga. 709, 710, 324 S.E.2d 729 (1985).

110 N.E.3d 1251

{¶ 13} The Massachusetts Supreme Court has ruled that Anders created confusion for appointed counsel by requiring counsel to argue against the client's wishes and best interests. Commonwealth v. Moffett , 383 Mass. 201, 205–206, 418 N.E.2d 585 (1981). The court determined that counsel should not be permitted to withdraw but should represent the client succinctly and in a way that will do the client the least harm. Id. at 207–208, 418 N.E.2d 585. Counsel may also disassociate from the arguments in the brief but must send a copy of the brief to the client if counsel does so. Id. at 208, 418 N.E.2d 585.

{¶ 14} The Missouri Supreme Court has determined that it will not permit appointed counsel in criminal appeals to withdraw under the Anders procedure and that counsel should " ‘communicate to the court the issues and whatever can be said in support of them.’ " State v. Gates , 466 S.W.2d 681, 683–684 (Mo.1971), quoting Advisory Committee Notes to ABA Standards, The Prosecution Function and the Defense Function 301 (1970 tentative draft). Similarly, the Colorado Supreme Court has looked to the ABA Standards for Criminal Appeals, which state that counsel cannot withdraw but should inform the client of the chances of success, eliminate arguments that lack any merit, and suggest the case be submitted on the briefs. McClendon v. People , 174 Colo. 7, 481 P.2d 715, 718 (1971), citing ABA Standards, Criminal Appeals 3.2 (1970).

{¶ 15} The North Dakota Supreme Court has found that adopting the Anders procedure violated the state constitution. State v. Lewis , 291 N.W.2d 735, 738 (N.D.1980). The court ruled that counsel could move to withdraw but that replacement counsel should be appointed. Id.

{¶ 16} In addition to the seven states discussed above, nine other states have barred a defense attorney from filing an Anders brief. See In re Attorney's Fees of Mohr , 97 Haw. 1, 11, 32 P.3d 647 (2001) ; Mosley v. State , 908 N.E.2d 599, 607 (Ind.2009) ; State v. Junkins , 2001 ME 133, 779 A.2d 948, ¶ 8 ; Ramos v. State , 113 Nev. 1081, 1084, 944 P.2d 856 (1997) ; State v. Talley , 103 N.M. 33, 1985-NMCA- 058, 702 P.2d 353, ¶ 23 ; In re Bailey , 187 Vt. 176, 2009 VT 122, 992 A.2d 276, ¶ 64 ; Revised Iowa R.App.P. 6.1005(1) and Iowa R.Prof.Cond. 32:3.1, comment 4; N.J. Court R. 3:22–6(d) ; W.Va.R.App.P. 3(d)(2). Kansas and Minnesota have not specifically barred the filing of Anders briefs by rule or case law, but neither state has adopted the Anders procedure, and Anders briefs are not filed by defense counsel in those two states. Martha C. Warner, Anders in the Fifty...